Weber Aircraft Inc. v. General Warehousemen & Helpers Union Local 767

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-40284

WEBER AIRCRAFT INC,

Plaintiff-Counter Defendant-Appellee,

VERSUS

GENERAL WAREHOUSEMEN AND HELPERS UNION LOCAL 767,

Defendant-Counter Claimant-Appellant.

Appeal from the United States District Court
for the Eastern District of Texas, Sherman Division
June 7, 2001
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Weber Aircraft, Inc. (“Weber”) brought this action against

General Warehousemen and Helpers Union Local 767 (“the Union”),

seeking to vacate an arbitration award in favor of the Union. The

district court rendered summary judgment in favor of Weber,

vacating the arbitration award. The Union appealed. We reverse

the judgment of the district court and reinstate the arbitration

award.

I.

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 A.

Weber and the Union entered into a collective bargaining

agreement (“CBA”) with arbitration provisions. The CBA reserves to

Weber “the right to . . . suspend, and/or discharge for just

cause.” “Just cause” is not defined in the CBA, though the company

rules and regulations are incorporated into the CBA and violations

of the rules “could be sufficient grounds for disciplinary action,

ranging from reprimand to immediate discharge depending on the

severity.” “Category 1” violations are subject to “Immediate

Suspension for investigation/Possible Discharge.” Sexual

harassment is a Category 1 violation. A decision to suspend or

discharge an employee is subject to the grievance and arbitration

provisions of the CBA. Under those provisions, to find in favor of

Weber’s suspension or discharge of an employee, the arbitrator has

to find that Weber had just cause for the particular disciplinary

action taken.

Roy Sewell had been employed by Weber as a lead-man for more

than twenty-five years and was covered by the CBA. In April 1998,

Sewell was accused of sexually harassing a female co-worker, and

was suspended pending an investigation of the accusation. During

Weber’s investigation, two additional female co-workers accused

Sewell of sexually harassing them. Based on its investigation,

Weber discharged Sewell in May 1998. The Union filed a grievance

seeking Sewell’s reinstatement with backpay, and the matter was

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presented to an arbitrator to determine whether Sewell was

“discharged for just cause.” The arbitrator found that Sewell

engaged in conduct constituting Category 1 sexual harassment.

However, the arbitrator found that “the discipline granted [Sewell]

was excessive, given the facts of the case and [Sewell’s] prior

record of service.”1 The arbitrator found that Weber did not have

just cause to discharge Sewell and ordered that he be reinstated

without backpay for the eleven-month period between his discharge

and the arbitrator’s award, effectively commuting Sewell’s

discipline to an eleven-month suspension without pay. Weber filed

suit in district court and successfully moved for summary judgment

vacating the arbitration award. The Union appealed.

The district court’s assigned reasons for rendering summary

judgment in favor of Weber were that (1) the arbitration award

exceeded the scope of the arbitrator’s authority under the CBA, and

(2) the reinstatement of Sewell (although without backpay), despite

finding that he had sexually harassed female employees, was

contrary to the public policy against sexual harassment in the

workplace. Because we conclude that the arbitration award is

1
The facts that the arbitrator found to mitigate Sewell’s
sexual harassment conduct were that (1) two alleged incidents
occurred prior to the inclusion of sexual harassment as a Category
1 offense and were never reported to the Company prior to its
investigation; (2) evidence was insufficient to prove that the
harassment resulted in the victim being “truly threatened by
[Sewell’s] actions, to the point that [Sewell] should be
permanently removed from the workplace”; and (3) Sewell “ha[d] a
record of long standing and valuable service to the Company and his
only prior discipline was reversed in arbitration.”
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congruous with the CBA and public policy, we must reverse.

B.

In an appeal from a grant of summary judgment in a suit to

vacate an arbitration award, we review the district court’s ruling

de novo. Six Flags Over Texas, Inc. v. Int’l Bhd. of Elec. Workers

Local No. 116, 143 F.3d 213, 214 (5th Cir. 1998) (citing Houston

Lighting & Power Co. v. Int’l Bhd. of Elec. Workers, Local Union

No. 66, 71 F.3d 179, 181 (5th Cir. 1995)). Judicial review of

arbitration awards is extremely limited. As long as the

arbitrator’s decision “draws its essence from the collective

bargaining agreement” and the arbitrator is not fashioning “his own

brand of industrial justice,” the award cannot be set aside.

United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36

(1987) (quoting United Steelworkers of Am. v. Enterprise Wheel &

Car Corp., 363 U.S. 593, 597 (1960)). Accordingly, we must affirm

the award “as long as the arbitrator is even arguably construing or

applying the contract and acting within the scope of his

authority.” Misco, 484 U.S. at 38. Thus, if we determine that the

arbitrator has acted within the ambit of his authority as set by an

arguable construction and application of the CBA, we have no

authority to reconsider the merits of the arbitration award, even

if the parties argue that the award is based on factual errors or

on misinterpretation of the CBA. Six Flags, 143 F.3d at 214

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(citing Misco, 484 U.S. at 36).

C.

In the present case, the arbitrator did not act beyond the

ambit of his authority under the CBA by determining that, while

there was not just cause to fire Sewell, there was just cause to

suspend him without backpay for some eleven months. The CBA

provides that a Category 1 violation justifies “Immediate

Suspension for Investigation/Possible Discharge.” The arbitrator

interpreted the CBA as authorizing a range of punishment for

Category 1 violations; discharge being the appropriate sanction for

the more serious violations, and suspension the suitable penalty

for less aggravated infractions. This interpretation is plausible

because the CBA provides that a Category 1 violation calls for

suspension and possible, not certain, discharge; and because the

CBA does not establish a fixed definition of “just cause,” plainly

indicating that the standard varies with the level of punishment.

Thus, the arbitrator’s determination that a particular Category 1

violation may be sanctioned by a suspension without pay arguably

“draw[s] its essence from the contract and [does not] simply

reflect the arbitrator’s own notions of industrial justice.”

Misco, 484 U.S. at 38.

Weber argues that this circuit’s decision in E.I. DuPont de

Nemours & Company v. Local 900 of the International Chemical

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Workers Union, 968 F.2d 456 (5th Cir. 1992), requires that the

arbitrator’s finding that Sewell committed a Category 1 violation

compels him to conclude that there was just cause for the

employee’s discharge. The narrowly drawn CBA in that case,

however, did not even arguably permit the arbitrator’s pro-employee

construction or application of the contract or action thereunder.

In DuPont, this court affirmed the district court’s vacating

of an arbitration award that reinstated two employees because the

CBA in that case did not permit the arbitrator to construe or apply

the contract to authorize a sanction other than discharge. Id. at

459. The effect of the characterization of the employees’ conduct

as “[u]nquestionably, . . . a discharge offense” under that CBA was

emphasized by the opinion’s heavy reliance on the reasoning in

Delta Queen Steamboat Co. v. District 2 Marine Engineers Beneficial

Association. Id. at 458-59 (citing Delta Queen, 889 F.2d 599 (5th

Cir. 1989)). In Delta Queen, the arbitrator found that the

discharged riverpilot had been “grossly careless.” 889 F.2d at

601. The CBA in that case expressly designated “carelessness” as

a “proper cause” for discharge. Id. (noting that the CBA provided

that “[n]o Officer shall be discharged except for proper cause such

as, but not limited to, inefficiency, insubordination,

carelessness, or disregard for the rules of the Company”). Despite

finding that the riverpilot had been guilty of gross carelessness,

however, the arbitrator in Delta Queen awarded the pilot

reinstatement, restoration of full seniority, and payment of most

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of his backpay. Id. Because the CBA limited the arbitrator’s

jurisdiction to determining whether proper cause existed for

discharge, and the CBA expressly stipulated that “carelessness”

was a “proper cause” for discharge, this court in Delta Queen

concluded that the arbitrator had exceeded the scope of his

authority established by the CBA. Id. at 603-04. By finding that

a violation had occurred that was expressly designated by the CBA

as a “proper cause” for discharge, the arbitrator had necessarily

found that there was proper cause for discharge, and the parties

had not authorized the arbitrator to vary from the sanction of

discharge in the event of such a finding. Id. at 603. In relying

on Delta Queen, the DuPont court reaffirmed that, when authority to

impose a lesser alternative sanction cannot be arguably inferred

from a CBA, the arbitrator may not exceed the scope of the CBA to

fashion one.

Neither DuPont nor Delta Queen is determinative of our

decision in the present case. The restrictive CBA provisions in

those cases, viz., the strict definition of “proper cause” in Delta

Queen, and the exclusion of a lesser sanction than discharge in

DuPont, prevented the arbitrators from adopting arguable

constructions or applications more favorable to the employees. Of

course, we are not empowered to reverse the arbitrator’s award

simply because the arbitrator’s arguable construction or

application of the CBA may deviate from that which this court, if

authorized, would adopt as its own construction of the CBA; or

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because of superficial differences in results between the court

cases. So long as the arbitrator arguably construed or applied the

CBA at issue and acted within the scope of his authority

thereunder, we must affirm. See Eastern Assoc. Coal Corp., 121 S.

Ct. at 466. After all, each case must turn on its own particular

facts, CBA provisions, arguable constructions or applications

thereof, and arbitral actions. We are bound to decide only after

careful analysis of these particular elements in the present case

and according to the legal principles controlling judicial review

of arbitration awards; we are not free to decide the present case

by analogy or distinction drawn upon previous judicial opinions

according to common law methodology.

II.

Next, we turn to the question of whether the arbitration award

was against public policy. Well-established federal labor law

favors the protection of an arbitration scheme of “private

settlement of labor disputes without the intervention of

government.” Misco, 484 U.S. at 37. There is, however, a “legal

exception that makes unenforceable ‘a collective bargaining

agreement that is contrary to public policy.’” Eastern Assoc. Coal

Corp., 121 S. Ct. at 467 (quoting W.R. Grace & Co. v. Rubber

Workers, 461 U.S. 757, 766 (1983)). “The [Supreme] Court has made

clear that any such public policy must be explicit, well defined,

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and dominant.” Id. (omitting internal quotations). “It must be

‘ascertained “by reference to the laws and legal precedents and not

from general consideration of supposed public interests.”’” Id.

(quoting W.R. Grace & Co., 461 U.S. at 766) (in turn quoting

Muschany v. United States, 324 U.S. 49, 66 (1945)) (citing Misco,

484 U.S. at 43). The question to be answered is not whether

Sewell’s sexual harassment of female co-workers itself violates

public policy, but whether the CBA, which (as interpreted by the

arbitrator) provides for his reinstatement, does so. See id. “To

put the question more specifically, does a [collective bargaining]

agreement to reinstate [a discharged employee] with specified

conditions . . . run contrary to an explicit, well-defined, and

dominant public policy, as ascertained by reference to positive law

and not from general considerations of supposed public interests?”

Id. (citing Misco, 484 U.S. at 43.)

The Supreme Court, in Eastern Associated Coal Corp. v. Mine

Workers, “agree[d], in principle, that courts’ authority to invoke

the public policy exception is not limited solely to instances

where the arbitration award itself violates positive law.” 121 S.

Ct. at 467. “Nevertheless, the public policy exception is narrow

and must satisfy the principles set forth in W.R. Grace and

Misco.”2 Id.; see also id. at 470 (Scalia, J., concurring) (“It is

2
In his concurring opinion, Justice Scalia characterized this
“narrow” exception as “a giant ‘Do Not Enter’ sign.” Eastern
Assoc. Coal Corp., 121 S. Ct. at 470 (Scalia, J., concurring).
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hard to imagine how an arbitration award could violate a public

policy, identified in this fashion, without actually conflicting

with positive law.”).

Applying the foregoing precepts, we, like the Supreme Court in

Eastern Associated Coal Corp., “cannot find in the [laws], the

regulations, or any other law or legal precedent an ‘explicit,’

‘well defined,’ ‘dominant’ public policy to which the arbitrator’s

decision ‘runs contrary.’” Id. at 469 (quoting Misco, 484 U.S. at

43; W.R. Grace, 461 U.S. at 766).3 We conclude,

3
Our conclusion is in accord with the decisions of the other
Circuits that have addressed the issue of whether there is a clear
public policy against reinstating sexual harassers. See Westvaco
Corp. v. United Paperworkers Int’l Union, 171 F.3d 971, 977 (4th
Cir. 1999); Communication Workers v. S.E. Elec. Coop., 882 F.2d 467
(10th Cir. 1989); Chrysler Motors Corp. v. Allied Indus. Workers,
959 F.2d 685 (7th Cir. 1992).
In Westvaco Corp. v. United Paperworkers International Union, the
Fourth Circuit noted that “while it is certainly true that there is
a public policy against sexual harassment, . . . [t]here is no
public policy that every harasser must be fired. Instead, a
company must ‘exercise[] reasonable care to prevent and correct
promptly any sexually harassing behavior.’” 171 F.3d at 977
(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)).
The Fourth Circuit reasoned that, “because misconduct often differs
in degree, there is no universal punishment that fits every case.”
Id. Decisions in the Seventh and Tenth circuits support the
conclusion of the Westvaco court. See Chrysler Motors Corp., 959
F.2d at 687-88 (finding that a less severe punishment than
discharge was an appropriate alternative remedy for a sexual
harasser and did not violate public policy); S.E. Elec. Coop., 882
F.2d at 469 (examining an arbitrator’s reinstatement award and
finding that it did not violate public policy against sexual
harassment).
Contrary to Weber’s argument, the Second and Third circuits have
not squarely addressed the issue. In Newsday, Inc. v. Long Island
Typographical Union, 915 F.2d 840 (2d Cir. 1990), the Second
Circuit determined that there is a clear public policy in favor of
eliminating sexual harassment from the workplace. However, the
court came to no conclusion as to whether there is a clear public
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therefore, that Weber’s public policy claim must be rejected.

Conclusion

Accordingly, the judgment of the district court is REVERSED,

and the arbitrator’s award is REINSTATED.

policy against reinstatement of sexual harassers who have been
otherwise sanctioned for their behavior. Rather, in light of the
fact that the employee in that case had been disciplined for
previous acts of sexual harassment and informed that further sexual
harassment would lead to his discharge, the Second Circuit found
that the public policy in favor of eliminating sexual harassment
from the workplace justified vacating the arbitrator’s award
reinstating the employee in that particular case. See St. Mary
Home, Inc. v. Serv. Employees Int’l Union, Dist. 1199, 116 F.3d 41,
47 (2d Cir. 1997) (noting the limited scope of Newsday’s holding).
In Stroehmann Bakeries, Inc. v. Local 776, Int’l Bhd. of Teamsters,
969 F.2d 1436 (3d Cir. 1992), the Third Circuit found that there is
a clear public policy in favor of employer sanctions against
employees who commit sexual harassment. Id. at 1442. Because the
arbitrator there awarded full reinstatement to the employee without
determining whether harassment occurred, the court found that the
reinstatement violated the public policy in favor of sanctioning
sexual harassers. Id. However, the court did not reach the
question of whether a clear public policy required discharge as the
only appropriate sanction. In fact, the Stroehmann court
recognized that when an arbitrator addressed the merits of the
sexual harassment claims against the discharged employee and then
made the determination that a sanction less severe than discharge
was the appropriate remedy, the arbitrator would not violate public
policy by reinstating a sexual harasser without backpay. Id. at
1443.
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